Thoughts on recent Ninth Circuit and California appellate cases from Professor Shaun Martin at the University of San Diego School of Law.

Wednesday, April 25, 2007

People v. Perrusquia (Cal. Ct. App. - April 25, 2007)

Hmmm. I admit that this one is close. But I think that I agree with Justice Bedsworth's dissent more than I do with Justice Moore's majority opinion (even as supported by Justice O'Leary's concurrence).

My dissent probably wouldn't be filled with as much rhetoric as the first couple of pages of Justice Bedsworth's dissent. Not only because my writing style is a bit different than Justice Bedsworth's -- mind you, as I've often said, I like many of his opinions, and his style often appeals to me -- but also because, in my mind, this isn't the case to go off the deep end about how we need to give the police free reign. It's a close case. This may well be an unconstitutional seizure. It's not a setting in which I would want to wax poetic about how critical it is that we allow the police to grab up every 30-something Hispanic that they sense might possibly be thinking about committing some sort of crime.

That said, on the merits, the police saw Perrusquia sitting in his idling car, crouched low in the driver's seat, around midnight in front of a 7-11 in a high-crime area in Anaheim. Earlier that day, at roll call, the police had been briefed about a series of six armed robberies at 7-11 stores in Anaheim. Perrusquia sat in his idling car for a minute or so -- which is a little weird -- crouched down, and he had parked his car not in the spots nearest to the 7-11 (and plenty of them were empty), but rather in the spot closest to the exit. Finally, when the police officers eventually started to approach the car, they heard "some sort of fumbling" noises and then heard something drop to the floor of the car with a "thud". And then Perrusquia immediately got out of the car once he saw the police and "aggressively and quickly" tried to pass the officers.

Given all of that, I think there was sufficient reasonable suspicion to conduct a Terry stop. At which point, by the way, they found a loaded 9 millimeter in Perrusquia's waistband. And, thereafter, a loaded .22 in the same waistband, plus some meth in his pocket. P.S. - Perrusquia's a prior felon as well.

Close. But, to me, the circumstances, as a whole, were enough to justify a brief patdown. I'd call it good police work. I wouldn't have suppressed.